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The WIPO Broadcasting Treaty: Back from the Dead?

Last year, we reported that WIPO Member States had decided to postpone holding an intergovernmental diplomatic conference to adopt the controversial Broadcasting Treaty. For us, and the many others who had expressed concern about the proposed treaty, this was welcome news. But it was short-lived. In 2008, the Broadcasting Treaty is being pushed by its supporters with a vengeance. Surprisingly, the US seems to have reversed its most recent position, and expressed support for continuing treaty negotiations so long as it includes webcasting.

Despite the fact that there has been no agreement on fundamental elements of the treaty after over 10 years of negotiations, in March there was a concerted move to resurrect negotiations, led by the European Community and Japan, with support from a set of other countries. At the September 2008 WIPO General Assembly meeting, a number of WIPO national delegates expressed support for finalizing treaty negotiations. Then in October, the long-standing WIPO Copyright Committee Chair, Mr. Jukka Liedes of Finland, produced an "informal paper" describing the process of negotiations so far, and proffered several options which would result in continuing discussions and finalization of the treaty.

Yesterday, the Broadcasting Treaty was the main topic of discussion at this week's meeting of the WIPO Standing Committee on Copyright in Geneva. In spite of the enthusiastic efforts of treaty supporters, consensus still seems quite a long way off. Several country delegations (France on behalf of the European Community, Japan, El Salvador and China) expressed support for concluding a treaty. Others repeated that the treaty must be limited to protection of signals and not grant exclusive rights, which the current draft does (Pakistan on behalf of the Asia Group, the Africa Group, South Africa, India. the US).

As in previous meetings, the most contentious issue was whether the treaty should give broadcasters and cablecasters exclusive rights over Internet retransmissions of broadcast and cablecast content. The Africa Group, China, Nigeria, India, South Africa and Egypt all opposed inclusion of webcasting or extension to Internet transmissions. Japan, the US, Australia and the Ukraine supported the extension of the treaty to the Internet.

The US delegation said that if discussions are to continue, the treaty should include webcasting. This is a reversal of the United States' most recent position, and harks back to a May 2006 meeting, where it was agreed to take out webcasting and divide the treaty into two tracks -- first, a treaty on broadcasting and cablecasting, and then second, an instrument dealing with broadcasting on the Internet -- webcasting or "netcasting", as the US had wanted, and "simulcasting", as supported by the EU.

Yesterday, the United States' delegation stated it had agreed only temporarily to limit the scope of the treaty to traditional broadcasting entities, provided that simulcasting was also excluded, and with the failure to move to a diplomatic conference in 2007, any agreement on the two-track approach had now expired. In other words, the US apparently wants to go back to 2006 and bring webcasting or "netcasting" back in to the treaty. Finally, in case there was any doubt, the North American Broadcasters' Association repeated that their strong preference is for a treaty with exclusive rights for broadcasters and extending to Internet retransmissions.

EFF and a diverse group of public interest NGOs, libraries and major U.S. tech industry players continue to oppose the current treaty draft because it's not limited to signal protection, but would instead create a new layer of exclusive intellectual property rights for broadcasters and cablecasters that would harm access to knowledge and consumers' existing rights under national copyright law, endanger citizen broadcasting on the Internet, raise competition policy concerns and stifle technological innovation. Here and here is the joint statement presented by that group to WIPO this week. And here's EFF's briefing paper on our concerns with the current treaty draft.

Discussions at WIPO wound up today, after heated discussions on the issue of copyright exceptions and limitations. Member states agreed to keep the Broadcasting Treaty on the Copyright Committee's agenda and asked WIPO to convene an information session at the next meeting in May to discuss outstanding issues. The Committee did not make a decision on the various options presented by the Chair in his informal paper. Perhaps most importantly, Member States affirmed the mandate previously provided by the WIPO General Assembly -- that the treaty must be framed on a signal-based approach, and that the convening of a diplomatic conference could be considered only after agreement has been achieved on the treaty's objectives, specific scope and objectives. We'll be back shortly with the full text of the final adopted conclusions of the meeting and our analysis of this week's key issue, copyright exceptions and limitations for the visually impaired, libraries and archives, education and innovative services.

(With many thanks to Sherwin Siy of Public Knowledge and Judit Rius Sanjuan of KEI for their notes of delegates' interventions.)